Tommy Horton Tate v. State

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT KNOXVILLE FILED JANUARY 1998 SESSION February 13, 1998

Cecil Crowson, Jr. Appellate C ourt Clerk TOMMY HORTON TATE, ) ) Appellant, ) No. 03C01-9707-CR-00264 ) ) Morgan County v. ) ) Honorable E. Eugene Eblen, Judge ) CHARLES JONES, WARDEN, ) (Habeas Corpus) ) Appellee. )

For the Appellant: For the Appellee:

Tommy Horton Tate, Pro Se John Knox Walkup M.C.R.C.F. Attorney General of Tennessee P.O. Box 2000 and Wartburg, TN 37887 Michael J. Fahey, II Assistant Attorney General of Tennessee 450 James Robertson Parkway Nashville, TN 37243-0493

Charles E. Hawk, Jr. District Attorney General and Frank Harvey Assistant District Attorney General P.O. Box 703 Kingston, TN 37763

OPINION FILED:____________________

AFFIRMED PURSUANT TO RULE 20

Joseph M. Tipton Judge OPINION

The petitioner, Tommy Horton Tate, appeals as of right the Morgan

County Criminal Court’s denial of his petition for habeas corpus relief. He contends that

his convictions for rape of a child are void because the indictments do not allege the

required mens rea.

According to the petitioner’s habeas corpus petition, the indictments

charged that the petitioner “did unlawfully engage in sexual penetration, to wit: fellatio,

with [the victim], who is less than thirteen (13) years of age . . . .” In State v. Hill, 954

S.W.2d 725 (Tenn. 1997), our supreme court held that an indictment charging a

defendant with the unlawful sexual penetration of a person less than thirteen years of

age was sufficient to charge the mental state needed for rape, aggravated by the victim

being less than thirteen years old. Thus, under Hill, the allegations in the indictments

charge the offense for which the petitioner was convicted.

After full consideration of the record, the briefs, and the law governing the

issue presented, we are of the opinion that the trial court properly dismissed the

petitioner’s petition for habeas corpus relief and that no precedential value would be

derived from the rendering of a full opinion. Therefore, we conclude that the judgment

of the trial court should be affirmed pursuant to Rule 20, Tenn Ct. Crim. App. R.

Joseph M. Tipton, Judge CONCUR:

Gary R. Wade, Judge

Curwood Witt, Judge